MEHMOOD ARSHAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2043/2018

[2021] HKCFI 1834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2043 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 July 2015 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Pakistan who entered Hong Kong illegally on 18 August 2007 and was arrested by police on 17 October 2007 for which he was subsequently convicted and sentenced to prison for 15 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager over a land dispute with his family. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jalal Pur Jattan, Gujarat, Punjab, Pakistan. After leaving school he worked as a fruits seller in his home village.

3.  Upon the passing of his father, his elder brother Nasir inherited his father’s land in the village. In about 2003 two brothers from the village Mudasar and Goga wanted to buy the land from Nasir, but when Nasir refused, it created conflicts between the two families and subsequently led to a violent confrontation between members of the two families during which Goga was killed by another brother of the Applicant Ansar who was then arrested by the police but was later cleared of the charge.

4.  To avoid further conflicts with Mudasar, the Applicant and Nasir and his family moved to Lala Moosa where they bought a house as their home, but one day in May 2005 while the Applicant was not at home, Mudasar came with some men and shot Nasir in the leg which required hospitalization for one month.      

5.  After the assault the Applicant became fearful for his life and moved away to live in Srai Alamgir, but when he later heard that Mudasar was seeking revenge against his family, he therefore departed Pakistan on 4 August 2007 for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 May 2014 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 20 October 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Mudasar and his followers upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that it was a private personal dispute between the Applicant’s brothers and Mudasar with nothing to do with the Applicant and without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of Pakistan away from his home district in large cities such as Srai Alamgir where he had stayed before without incidents and where it would be difficult if not impossible for Mudasar or his men to locate him.

8.  On 3 November 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 28 April 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 July 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no evidence from the Applicant that he has ever been threatened or attacked by anyone over the conflicts between his brothers and Mudasar, that even on his own admission during his appeal hearing that the Applicant has never been a target of Mudasar over the conflict between Mudasar and his brothers, that after all these years that it is doubtful that Mudasar would still be any adverse interest in him as nothing has since his departure happened even to Nasir, and concluded that there is no real or personal risk of any harm to the Applicant from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.     

10.  On 8 February 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 9 March 2017 rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 Risk upon his return to Pakistan.

11.  The Applicant did not bring any appeal to the Board against this Further Decision of the Director, and instead on 26 September 2018 he filed his Form 86 for leave to apply for judicial review of the Board’s decision of 20 July 2015 but with no ground of relief given in the Form, while in an attachment marked Exhibit “A” to his supporting affirmation of the same date he merely repeated his claim of fear of harm from Mudasar and his followers as before without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the 3-month period for him to file his Form 86 against the Board’s decision of 20 July 2015 fell on 20 October 2015, the Applicant was therefore almost 3 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of eth intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

14.  In the Applicant’s case, a delay of almost 3 years must be considered as extremely substantial and excessive, for which he did not provide any explanation in his application or his affirmation, and as the record shows that the decision was sent on the same day to his then last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above the Applicant has not put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by eth Applicant, I do not find any merits in his intended application either.  

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any risk of harm in any form from anyone to the Applicant in Pakistan for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 20 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

18.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

19.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1